Backpage.com sues state to halt law aimed at online child sex ads

Backpage.com is suing Tennessee Attorney General Robert Cooper along with the 31 district attorneys general across the state in an effort to put the brakes on a law set to go into effect next week.

The suit — filed in U.S. District Court in Nashville on Wednesday — seeks an injunction against a looming state law that would make criminally liable any person or company selling ads involving commercial sex with anyone appearing to be a minor if they don’t make a reasonable attempt to verify the individual’s age.

Backpage claims that Tennessee Public Charter 1075 would have a chilling effect on free speech online and that it’s unconstitutional, violating the Communication Decency Act of 1996, the First and 14th amendments, and the Commerce Clause of the U.S. Constitution.

The online classified ads company claims in the court filing that if enacted the law “would impose an intolerable burden on speech across the country.”

The law would make it illegal to sell advertisements that “would appear to a reasonable person” to include a “commercial sex act … with a minor” even if, as the suit states, “no such content is ever published or the ad does not actually concern a minor.” Any person or company found guilty of such an infraction could then be punished with up to 15 years in prison and a minimum fine of $10,000.

Furthermore, such a company would be responsible for verifying the age of anyone used in any ad via government-issued identification and would not be able to argue that it “didn’t know” a person included in a posted ad was underage.

In practice, the online ad company says the obligation of verifying the age of millions of users a year — Backpage.com claims it had 3.3 million posts in April alone — is just unfeasible. “Although its ostensible purpose — to prevent the sex trafficking of children — is laudable, the law is not,” the suit states.

Campaigns by attorneys general across the country successfully pressured online classified giant Craigslist to remove its adult escort section. Much of that business then moved to other websites, such as Backpage.com.

The Backpage suit claims the new restrictions would not only limit its business but also censor online content in this state and elsewhere.

“In all likelihood,” the suit reads, “online service providers and other publishers will choose a [to] stop allowing third-party content altogether, or at least, all adult-oriented content. And, because Public Chapter 1075 is not limited to conduct within Tennessee, online service providers may also be compelled to attempt to block or censor for Tennesseans information and content available elsewhere in the country.”

Ryan Dalton, of Operation Broken Silence, a Tennessee anti-human-trafficking organization that helped shape the law in question as well as similar other ones, said the company’s move was expected given its recent legal success in the state of Washington.

A federal court there has already granted a temporary injunction against a similar law, which Backpage claims forces websites “to become the government’s censors of user-submitted content” through the threat of felony prosecution.

On June 5, a federal court in that state granted Backpage’s motion calling for a temporary restraining order against that law two days before it was set to take effect.

While Dalton said he too had concerns over freedom of expression issues relating to online advertisements, “I trust that the Sixth Circuit will make a Constitutionally sound decision, whatever that may be. However, the law does give Backpage a fair opportunity to ethically monitor their ads by verifying the age of their posters and in doing so avoid criminal liability while protecting youth.”

Dalton added, “The refusal of Backpage to filter or remove illicit conduct, particularly the sex trafficking of children, is unacceptable, and unless a legislative act can compel unethical classified ad websites like Backpage to become responsible, children will continue to be sold by traffickers and Backpage will continue to profit from the horrors that these children will endure.”

A spokeswoman for the Tennessee attorney general said attorneys from that office were still reviewing the suit and were not immediately prepared to comment on it. According to the attorney general’s office a preliminary injunction hearing is set for 10 a.m. July 30 in U.S. District Court Judge John Nixon’s courtroom.

Public Chapter 1075 was slated to become effective Sunday, July 1, but will not be enforced at least until after that hearing.